Federal Register / Vol. 76, No. 75 / Tuesday, April 19, 2011 / Proposed Rules 21833 

Airspace Designations and Reporting 

Points, signed August 18, 2010, and 

effective September 15, 2010, which is 

incorporated by reference in 14 CFR 

71.1. The airspaces listed in this 

document would be subsequently 

published in that Order. 

The FAA has determined that this 

proposed regulation only involves an 

established body of technical 

regulations for which frequent and 

routine amendments are necessary to 

keep them operationally current. It, 

therefore—(1) Is not a ‘‘significant 

regulatory action’’ under Executive 

Order 12866; (2) is not a ‘‘significant 

rule’’ under DOT Regulatory Policies 

and Procedures (44 FR 11034; February 

26, 1979); and (3) does not warrant 

preparation of a regulatory evaluation as 

the anticipated impact is so minimal. 

Because this is a routine matter that will 

only affect air traffic procedures and air 

navigation, it is certified that this rule, 

when promulgated, will not have a 

significant economic impact on a 

substantial number of small entities 

under the criteria of the Regulatory 

Flexibility Act. 

The FAA’s authority to issue rules 

regarding aviation safety is found in 

Title 49 of the United States Code. 

Subtitle 1, section 106 describes the 

authority of the FAA Administrator. 

Subtitle VII, Aviation Programs, 

describes in more detail the scope of the 

agency’s authority. 

This rulemaking is promulgated 

under the authority described in subtitle 

VII, part A, subpart 1, section 40103, 

Sovereignty and use of airspace. Under 

that section, the FAA is charged with 

prescribing regulations to ensure the 

safe and efficient use of the navigable 

airspace. This regulation is within the 

scope of that authority because it 

proposes to revise Class E airspace at 

the Yakutat Airport, Yakutat, AK, and 

represents the FAA’s continuing effort 

to safely and efficiently use the 

navigable airspace. 

List of Subjects in 14 CFR Part 71 

Airspace, Incorporation by reference, 

Navigation (air). 

The Proposed Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

proposes to amend 14 CFR part 71 as 

follows: 

PART 71—DESIGNATION OF CLASS A, 

B, C, D, AND E AIRSPACE AREAS; AIR 

TRAFFIC SERVICE ROUTES; AND 

REPORTING POINTS 

1. The authority citation for 14 CFR 

part 71 continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40103, 40113, 

40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 

1963 Comp., p. 389. 

§ 71.1 [Amended] 

2. The incorporation by reference in 

14 CFR 71.1 of Federal Aviation 

Administration Order 7400.9U, 

Airspace Designations and Reporting 

Points, signed August 18, 2010, and 

effective September 15, 2010, is to be 

amended as follows: 

* * * * * 

Paragraph 6005 Class E airspace extending 

upward from 700 feet or more above the 

surface of the earth. 

* * * * * 

AAL AK E5 Yakutat, AK [Revised] 

Yakutat Airport, AK 

(Lat. 59°30′12′′ N., long. 139°39′37′′ W.) 

Yakutat VORTAC 

(Lat. 59°30′39′′ N., 139°38′53′′ W.) 

That airspace extending upward from 700 

feet above the surface within the area 

bounded by lat. 59°47′42′′ N., long., 

139°58′48′′ W., to lat. 59°37′33′′ N., long 

139°40′53′′ W., then along the 7 mile radius 

of the Yakutat VORTAC clockwise to 

59°28′54′′ N., long. 139°25′35′′ W., to lat. 

59°20′16′′ N., long. 139°10′20′′ W., to lat. 

59°02′49′′ N. long. 139°47′45′′ W., to lat. 

59°30′15′′ N. long. 140°36′43′′ W., to the point 

of beginning; and that airspace extending 

upward from 1,200 feet above the surface 

with a 75-mile radius of the Yakutat 

VORTAC. 

Issued in Anchorage, AK, April 7, 2011. 

Michael A. Tarr, 

Manager, Alaska Flight Services Information 

Area Group. 

[FR Doc. 2011–9398 Filed 4–18–11; 8:45 am] 

BILLING CODE 4910–13–P 

LIBRARY OF CONGRESS 

Copyright Royalty Board 

37 CFR Parts 370 and 382 

[Docket No. RM 2011–5] 

Notice and Recordkeeping for Use of 

Sound Recordings Under Statutory 

License 

AGENCY: Copyright Royalty Board, 

Library of Congress. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Copyright Royalty Judges 

are proposing to amend their regulations 

to provide reporting of uses of sound 

recordings performed by means of 

digital audio transmissions pursuant to 

statutory license for the period April 1, 

2004, through December 1, 2009. 

DATES: Comments are due no later than 

May 19, 2011. 

ADDRESSES: Comments may be sent 

electronically to crb@loc.gov. In the 

alternative, send an original, five copies, 

and an electronic copy on a CD either 

by mail or hand delivery. Please do not 

use multiple means of transmission. 

Comments may not be delivered by an 

overnight delivery service other than the 

U.S. Postal Service Express Mail. If by 

mail (including overnight delivery), 

comments must be addressed to: 

Copyright Royalty Board, P.O. Box 

70977, Washington, DC 20024–0977. If 

hand delivered by a private party, 

comments must be brought to the 

Library of Congress, James Madison 

Memorial Building, LM–401, 101 

Independence Avenue, SE., 

Washington, DC 20559–6000. If 

delivered by a commercial courier, 

comments must be delivered to the 

Congressional Courier Acceptance Site 

located at 2nd and D Street, NE., 

Washington, DC. The envelope must be 

addressed to: Copyright Royalty Board, 

Library of Congress, James Madison 

Memorial Building, LM–403, 101 

Independence Avenue, SE., 

Washington, DC 20559–6000. 

FOR FURTHER INFORMATION CONTACT: 

Richard Strasser, Senior Attorney, or 

Gina Giuffreda, Attorney Advisor, by 

telephone at (202) 707–7658 or e-mail at 

crb@loc.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

The Copyright Act grants copyright 

owners of sound recordings the 

exclusive right to perform their works 

publicly by means of digital audio 

transmissions subject to certain 

limitations and exceptions. Among the 

limitations placed on the performance 

right for sound recordings is a statutory 

license that permits certain eligible 

subscription, nonsubscription, satellite 

digital audio radio services, and 

business establishment services to 

perform those sound recordings 

publicly by means of digital audio 

transmissions. 17 U.S.C. 114. 

Similarly, copyright owners of sound 

recordings are granted the exclusive 

right to make copies of their works 

subject to certain limitations and 

exceptions. Among the limitations 

placed on the reproduction right for 

sound recordings is a statutory license 

that permits certain eligible 

subscription, nonsubscription, satellite 

digital audio radio services, and 

business establishment services to make 

ephemeral copies of those sound 

recordings to facilitate their digital 

transmission. 17 U.S.C. 112(e). 

Both the section 114 and 112 licenses 

require services to, among other things, 


jdjones on DSK8KYBLC1PROD with PROPOSALS-1
21834 Federal Register / Vol. 76, No. 75 / Tuesday, April 19, 2011 / Proposed Rules 

1To date, the Judges have determined royalty 

rates for the license periods 2006–2010 and 2011– 

2015. See 72 FR 24084 (May 1, 2007) and 76 FR 

13026 (March 9, 2011). 

2SoundExchange, Inc., originally created by the 

Recording Industry Association of America, Inc., is 

currently the Collective for receiving both section 

112 and 114 royalties, and it (and its predecessor) 

has been the Collective since the inception of the 

two licenses. 

3Until that time, interim regulations were in 

effect. See 71 FR 59010 (October 6, 2006). 

4Prior to May 31, 2005, the statutory licenses 

were administered by the Copyright Office under 

the Copyright Arbitration Royalty Panel (‘‘CARP’’) 

system. The Copyright Royalty Distribution Reform 

Act of 2004 replaced the CARP system with the 

Copyright Royalty Judges. 

pay royalty fees and to report to 

copyright owners of sound recordings 

on the use of their works. Both licenses 

direct the Copyright Royalty Judges 

(‘‘Judges’’) to determine the royalty rates 

to be paid, 17 U.S.C. 114(f)(1)(A), 

(f)(2)(A) and 17 U.S.C. 112(e)(3), and to 

establish regulations to give copyright 

owners reasonable notice of the use of 

their works and create and maintain 

records of use for delivery to copyright 

owners. 17 U.S.C. 114(f)(4)(A) and 17 

U.S.C. 112(e)(4). The royalty fees 

collected under the section 114 and 112 

licenses, as determined by the Judges,1

are paid to a central source known as a 

Collective.2 See 37 CFR Part 370. The 

purpose of the notice and recordkeeping 

requirement is to ensure that the 

royalties collected under the statutory 

licenses are distributed by the 

Collective, or other agents designated to 

receive royalties from the Collective, to 

the correct recipients. To this end, on 

October 13, 2009, the Judges published 

final regulations specifying notice and 

recordkeeping requirements for use of 

sound recordings under the section 114 

and 112 licenses.3 See 74 FR 52418. 

SoundExchange Petition for 

Rulemaking 

On March 24, 2011, SoundExchange 

petitioned the Judges to commence a 

rulemaking proceeding to consider 

adopting regulations to authorize 

SoundExchange ‘‘to use proxy reporting 

data to distribute to copyright owners 

and performers certain sound recording 

royalties [collected by SoundExchange] 

for periods before 2010 that are 

otherwise undistributable due to 

licensees’ failure to provide reports of 

use’’ or their provision of ‘‘reports of use 

that are so deficient as to be unusable.’’ 

Petition of SoundExchange, Inc. for a 

Rulemaking to Authorize Use of a Proxy 

to Distribute Certain Pre-2010 Sound 

Recording Royalties at 1 and 2 (March 

24, 2011) (footnotes omitted). 

SoundExchange states that it has 

‘‘expended considerable effort’’ to work 

with licensees to bring them into 

compliance with their reporting 

obligations, id. at 2, and will continue 

its efforts to obtain reporting data for the 

pre-2010 period. SoundExchange asserts 

that despite these efforts, it is 

‘‘approaching the point at which further 

efforts would either be futile or 

unreasonably costly.’’ Id. 

SoundExchange holds approximately 

$28 million in royalties paid by 

statutory licensees under sections 114 

and 112 for the period April 1, 2004, to 

December 31, 2009, that should be paid 

to copyright owners and performers. 

This pool represents 4.5% of the 

royalties SoundExchange has collected 

for that period. Id. However, these 

royalties are not distributable due to 

licensees’ failure to provide reports of 

use as required or their provision of 

unusable reports. Id. Consequently, 

SoundExchange asserts that such 

royalties can ‘‘reasonably’’ be distributed 

to copyright owners and performers 

only by use of a proxy. 

In support of its request, 

SoundExchange points out that a proxy 

has been utilized once before when the 

lack of reports of use rendered the 

reasonable distribution of royalties 

difficult if not impossible. There, 

reporting data did not exist for the 

period October 1998 (when the statutory 

licenses first became available for 

services other than preexisting 

subscription services) to March 2004 

(when interim recordkeeping 

regulations were promulgated).4 In 

order to allow for the distribution of 

those royalties, the reports of use 

submitted by preexisting subscription 

services for the October 1998 to March 

2004 timeframe were used as a proxy for 

all other services operating under the 

section 114 and section 112 licenses, 

thereby negating the need for 

submission of additional reports of use 

by nonsubscription services, satellite 

digital audio radio services, new 

subscription services or business 

establishment services. See Notice and 

Recordkeeping for Use of Sound 

Recordings Under Statutory License, 

Docket No. RM 2002–1G, Final rule, 69 

FR 58261 (September 30, 2004). The 

Copyright Office stated that use of such 

proxy data was not a perfect solution in 

that context but was the ‘‘optimal 

method to ensure that royalties 

collected for the [October 1998 to March 

2004 timeframe] [were] equitably 

distributed * * * with minimal delay, 

cost, and effort.’’ 69 FR 42009 

(September 30, 2004). 

SoundExchange contends that a 

similar approach is warranted now. 

Namely, SoundExchange states that it 

has ‘‘reduced the pool of 

[undistributable] royalties * * * due to 

missing reports of use to a point such 

that in the near future ‘[t]he likelihood 

of obtaining any useful and meaningful 

data’ from non-reporting services would 

be ‘small.’ ’’ SoundExchange Petition at 

3. Consequently, SoundExchange 

proposes using proxy reports of use. 

Specifically, SoundExchange seeks to 

use ‘‘available data for services of the 

same license type, for the same year,’’ 

which SoundExchange believes should 

result in a ‘‘much more accurate 

distribution’’ than the distribution for 

the October 1998 to March 2004 period. 

Id. at 9 (emphasis in original). For 

example, for business establishment 

services which fail to submit reports of 

use as required under the applicable 

regulations, SoundExchange would use 

reports of use submitted by other 

business establishment services for the 

same calendar year and distribute 

royalties from non-submitting services 

in proportion to the distribution of 

royalties from submitting services. Id. 

SoundExchange also proposes 

technical corrections to part 382 to 

reflect the renumbering of certain 

sections in Part 370 when the Judges 

adopted their final notice and 

recordkeeping regulations in October 

2009. 

Solicitation of Comments on the 

Proposed Regulations 

The Judges seek comment from 

interested parties on SoundExchange’s 

proposal regarding the use of a proxy for 

the distribution of royalties collected 

under the section 114 and 112 licenses 

for the period April 1, 2004, through 

December 31, 2009. In addition to 

general comments regarding the 

proposal, the Judges seek comments on 

the following areas: 

1. Has SoundExchange exhausted all 

reasonable means to ensure that all 

undistributed royalties for the period from 

April 1, 2004, through December 31, 2009, 

have been distributed to the party that earned 

those royalties? If not, what other means 

could SoundExchange use to facilitate further 

distributions without resorting to proxy 

reports of use? 

2. Assuming that SoundExchange has 

exhausted all reasonable means of 

distributing royalties to the parties who 

earned them, is the proposed use of proxy 

reports a fair and appropriate means of 

distributing remaining royalties for this 

period? If not, what would be a better 

alternative? 

3. SoundExchange proposes using proxy 

reports of use based on available data for 

services of the same type, for the same year. 

Where no such proxy reports are available for 

the same type of service for the same year, 

is a default proxy based on an aggregate of 

the reports of other services covered by the 

license a fair and appropriate means of 


jdjones on DSK8KYBLC1PROD with PROPOSALS-1
Federal Register / Vol. 76, No. 75 / Tuesday, April 19, 2011 / Proposed Rules 21835 

distributing royalties for this period. If not, 

what would be a better alternative? 

4. Is the disaggregation by type of service 

proposed in § 370.4(f) (i.e., nonsubscription 

transmission service, preexisting satellite 

digital audio radio service, new subscription 

service, or business establishment service) 

sufficient to determine a reasonable proxy for 

generating corresponding reports of use for 

similar types of non-reporting services? 

Is further disaggregation of some service 

types, as currently referenced in 37 CFR Part 

380 (e.g., disaggregation of nonsubscription 

transmission services into commercial 

webcasters, noncommercial webcasters, 

broadcasters, or noncommercial educational 

webcasters) desirable to determine a better 

proxy for generating corresponding reports of 

use for such non-reporting services? Would 

this type of further disaggregation be 

practicable? Would the benefits yielded by 

such further disaggregation, if any, justify the 

incremental costs of doing so? 

5. Does the proposed regulatory language 

in §§ 370.3(i) and 370.4(f) (i.e., ‘‘* * * service 

has not provided a report of use required 

under this section * * *’’) clearly encompass 

both the failure of a service to provide reports 

of use as well as instances where the service 

files an unusable report of use? 

SoundExchange’s petition is posted 

on the Copyright Royalty Board Web 

site at http://www.loc.gov/crb/3-24-11- 

SoundExchange-petition-proxy.pdf. 

List of Subjects 

37 CFR Part 370 

Copyright, Sound recordings. 

37 CFR Part 382 

Copyright, Digital audio 

transmissions, Performance right, Sound 

recordings. 

Proposed Regulations 

For the reasons set forth in the 

preamble, the Copyright Royalty Judges 

propose amending 37 CFR parts 370 and 

382 as follows: 

PART 370—NOTICE AND 

RECORDKEEPING REQUIREMENTS 

FOR STATUTORY LICENSES 

1. The authority citation for part 370 

continues to read as follows: 

Authority: 17 U.S.C. 112(e)(4), 114(f)(4)(A). 

2. Section 370.3 is amended by 

adding new paragraph (i) to read as 

follows: 

§ 370.3 Reports of use of sound 

recordings under statutory license for 

preexisting subscription services. 

* * * * * 

(i) In any case in which a preexisting 

subscription service has not provided a 

report of use required under this section 

for use of sound recordings under 

section 112(e) or section 114 of title 17 

of the United States Code, or both, prior 

to January 1, 2010, reports of use for the 

corresponding calendar year filed by 

other preexisting subscription services 

shall serve as the reports of use for the 

non-reporting service, solely for 

purposes of distribution of any 

corresponding royalties by the 

Collective. 

3. Section 370.4 is amended by 

adding new paragraph (f) to read as 

follows: 

§ 370.4 Reports of use of sound 

recordings under statutory license for 

nonsubscription transmission services, 

preexisting satellite digital audio radio 

services, new subscription services and 

business establishment services. 

* * * * * 

(f) In any case in which a 

nonsubscription transmission service, 

preexisting satellite digital audio radio 

service, new subscription service, or 

business establishment service has not 

provided a report of use required under 

this section for use of sound recordings 

under section 112(e) or section 114 of 

title 17 of the United States Code, or 

both, prior to January 1, 2010, reports of 

use for the corresponding calendar year 

filed by other services of the same type 

shall serve as the reports of use for the 

non-reporting service, solely for 

purposes of distribution of any 

corresponding royalties by the 

Collective. 

PART 382—RATES AND TERMS FOR 

DIGITAL TRANSMISSIONS OF SOUND 

RECORDINGS AND THE 

REPRODUCTION OF EPHEMERAL 

RECORDINGS BY PREEXISTING 

SUBSCRIPTION SERVICES AND 

PREEXISTING SATELLITE DIGITAL 

AUDIO RADIO SERVICES 

4. The authority citation of part 382 

continues to read as follows: 

Authority: 17 U.S.C. 112(e), 114, and 

801(b)(1). 

§ 382.3 [Amended] 

5. Section 382.3(c)(1) is amended by 

removing ‘‘§ 370.2’’ and adding ‘‘§ 370.3’’ 

in its place. 

§ 382.13 [Amended] 

6. Section 382.13(f)(1) is amended by 

removing ‘‘§ 370.3’’ and adding ‘‘§ 370.4’’ 

in its place. 

Dated: April 14, 2011. 

James Scott Sledge, 

Chief U.S. Copyright Royalty Judge. 

[FR Doc. 2011–9455 Filed 4–18–11; 8:45 am] 

BILLING CODE 1410–72–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2007–1037; FRL–9297–4] 

Approval and Promulgation of State 

Implementation Plans; State of 

Colorado; Interstate Transport of 

Pollution Revisions for the 1997 PM2.5

and 8-Hour Ozone NAAQS: ‘‘Significant 

Contribution,’’ ‘‘Interference with 

Maintenance,’’ and ‘‘Interference with 

Prevention of Significant 

Deterioration’’ Requirements 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

portions of a State Implementation Plan 

(SIP) revision submitted by the State of 

Colorado for the purpose of addressing 

the ‘‘good neighbor’’ provisions of Clean 

Air Act (‘‘Act’’ or ‘‘CAA’’) section 

110(a)(2)(D)(i) for the 1997 8-hour ozone 

National Ambient Air Quality Standards 

(‘‘NAAQS’’ or ‘‘standards’’) and the 1997 

fine particulate matter (‘‘PM2.5’’) 

NAAQS. This SIP revision addresses the 

requirement that the State of Colorado’s 

SIP (‘‘Interstate Transport SIP’’) have 

adequate provisions to prohibit air 

emissions from adversely affecting 

another state’s air quality through 

interstate transport. In this action, EPA 

is proposing to approve the Colorado 

Interstate Transport SIP provisions that 

address the requirement of section 

110(a)(2)(D)(i) that emissions from 

Colorado sources do not significantly 

contribute to nonattainment of the 1997 

PM2.5 NAAQS in any other state, 

interfere with maintenance of the 1997 

PM2.5 NAAQS by any other state, or 

interfere with any other state’s required 

measures to prevent significant 

deterioration of air quality for the 1997 

PM2.5 and 8-hour ozone NAAQS. This 

action is being taken under section 110 

of the CAA. 

DATES: Comments must be received on 

or before May 19, 2011. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R08– 

OAR–2007–1037, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

• E-mail: clark.adam@epa.gov. 

• Fax: (303) 312–6064 (please alert 

the individual listed in the FOR FURTHER

INFORMATION CONTACT if you are faxing 

comments). 

• Mail: Deborah Lebow Aal, Acting 

Director, Air Program, Environmental 


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